Changes to Policing, Consent, and Three Landmark Cases- the Round Up

15 June 2020 by Conor Monighan

Conor Monighan brings us the latest updates in human rights law

In the News:

Anti-racism protests, sparked by the death of George Floyd, continued across the world. This week much of the focus has been on statues commemorating controversial historical figures. In Bristol, campaigners toppled the statue of a 17^th century slave trader called Edward Colston.

The move led to a debate about what ought to be done with such statues. The founder of the Scouts, Robert Baden-Powell, was accused of racism, homophobia, and anti-Semitism. Initially it seemed his statue would be put into storage, but following an outcry it has been boarded up instead. A number of other figures have received similar treatment, including Sir Winston Churchill.

In the US, it seems change is coming to policing. The Democratic Party is proposing a police reform bill which, if passed, would become the Justice in Policing Act of 2020. The Bill would ban chokeholds from being used, limit the use of military weapons, and restrict qualified immunity (the legal principle which has prevented many officers from being sued for alleged misconduct). President Trump confirmed that he ‘generally’ supported ending the use of chokeholds.

Last Weekend

Last weekend saw further demonstrations and clashes with the police. There were a number of peaceful anti-racism protests, particularly in Hyde Park and at Marble Arch. However, the police received intelligence that far-right groups would be attending and trying to cause to trouble. As a result, the Black Lives Matter movement encouraged people not to join rallies.

The Metropolitan Police imposed conditions on protests in accordance with s.60 Criminal Justice Act 1987. This required protests to finish by 5pm and to follow pre-agreed routes. The police also emphasised the need to comply with the Coronavirus Regulations.

Despite this, the weekend was marred by violence. Hundreds of people travelled to London under the auspices of ‘protecting our nation’s monuments’. Some shouted ‘England’ whilst raising their arms, and a number of officers were attacked. Over 100 arrests were made.

In Other News….

• The Independent Office for Police Conduct (IOPC) has opened an investigation into the death of Simeon Francis. After being arrested, Mr Francis was placed into a police cell in Torquay. Mr Francis was then found to be ‘seriously unwell’ and paramedics were called. He was later pronounced dead. The IOPC has said it will focus on the level of care provided during detention. An inquest has been opened and adjourned. More from the Guardian here.
• The government was threatened with a number of legal challenges relating to its handling of the Covid crisis. A team led by Michael Mansfield QC, the prominent human rights barrister, has written twice to the Director of Public Prosecutions (Max Hill QC). The letters demand to know why no legal action has been taken against Dominic Cummings. The second letter specifically suggested a judicial review was forthcoming. In addition, a group of campaigners are seeking to compel ministers to hold an independent inquiry into the provision of PPE. The Good Law Project, run by Jolyon Maugham QC, has started crowdfunding. It seeks to argue that Article 2 of the European Convention on Human Rights requires such an inquiry to be held. More information here.
• In Parliament, the Counter-Terrorism and Sentencing Bill 2019-21 received its second reading. Passed in the wake of two recent terrorist attacks, the Bill aims to crack down on terrorist activity. If it becomes law, it will introduce a minimum jail term of 14 years for terrorist offenders. It will also scrap the automatic early release of offenders and require certain individual to undergo a ‘lie-detector test’ before being let out. More from the Commons Library here.

In the Courts:

• Maguire, R (on the application of) v HM Senior Coroner for Blackpool & Fylde & Ors: The issue was whether the circumstances of Ms Maguire’s death required the coroner to allow the jury to return an ‘expanded conclusion’. Such a conclusion would have considered “in what circumstances” Ms Maguire died. The Court of Appeal ruled that the coroner had correctly excluded this issue from the jury. The court confirmed that states are under a positive operational duty to take reasonable steps to protect lives of voluntary patients in a psychiatric hospital (Rabone), whereas in cases of medical negligence this duty does not arise (Parkinson). In light of this distinction, the operational duty under Article 2 ECHR (‘the right to life’) was not engaged. Whilst Ms Maguire was subject to a Deprivation of Liberty safeguard and was vulnerable, her circumstances were not analogous to a psychiatric patient who is in hospital to guard against the risk of suicide. Her presence at the care home was not due to a need for medical treatment which, if required, it would be sought from the NHS as normal. In addition, there was no systemic failure of medical care. Ms Maguire’s life was not ‘knowingly put in danger by a denial of access to life-saving emergency treatment’. On the contrary, the collective judgement of the professionals was that Ms Maguire’s was not in danger. Appeal dismissed.
• Paul v Royal Hampton NHS Trust: The High Court addressed a difficult point of law in relation to psychiatric harm. The Defendant hospital had negligently failed to identify the heart disease suffered by the Claimants’ father. As a result, 14 months later the father collapsed and died. His children saw this and suffered psychiatric harm as a result. The Defendant argued that there was no eligible shocking ‘event’, because their negligent treatment had occurred months earlier. The court disagreed. It found: (1) It is not the case that the shocking event has to be synchronous with the negligence that gives rise to it [63]. As Lord Oliver said in Alcock, there must be temporal proximity between the event caused by the Defendant’s breach and the psychiatric injury. (2) There is no reason why the shocking event cannot be an omission [64]. (3) The traumatic event needn’t be external to the primary victim. (4) The ratio of Taylor v Novo is that “where the defendant’s negligence results in an ‘event’ giving rise to injury in a primary victim, a secondary victim can claim for psychiatric injury only where it is caused by witnessing that event rather than any subsequent, discrete event which is the consequence of it, however sudden or shocking that subsequent event may be” [73].
• A Local Authority v JB (Rev 1): The issue was, in the words of the Court of Appeal, “whether a person, in order to have capacity to decide to have sexual relations with another person, needs to understand that the other person must at all times be consenting to sexual relations”. The court ultimately answered this question in the affirmative. It had to balance the principle of autonomy, the need to safeguard vulnerable people, and the wider context of ensuring sexual relations only take place with the full and ongoing consent of both parties (especially in light of s.6 Human Rights Act 1998). The court recognised that the focus of the Mental Capacity Act 2005 is different from that of the criminal law, but concluded that it would be wrong to exclude such considerations entirely. It noted that the criminal justice system does not necessarily deal with every case of potential criminality and that, in any event, the Court of Protection is designed to protect P from harm. Requiring that JB understand sexual relations must be consensual was not discriminatory, because such a requirement is imposed on everyone (regardless of capacity). Appeal allowed.

On the UKHRB

• Rosalind English has written an article on Barnsley Hospital NHS Foundation Trust v MSP, which concerned the removal of life support from a patient.
• Alex Ewing argued that the ECtHR’s judgment in Hammerton v United Kingdom was an entirely straightforward application of established case law, contrary to Professor Ekins’ view.
• Jake Richards explained R (Coughlan) v Minister for the Cabinet Office, in which the Court of Appeal dismissed a challenge to a pilot scheme which required potential voters to produce ID.
• Rosalind English provided an update on the challenge to the Lockdown Regulations.
• Caroline Cross examined SC (a child, suing by her mother and litigation friend, AC) v University Hospital Southampton NHS Foundation Trust, which concerned the question of whether a clinical negligence trial could be heard remotely.
• On LawPod, Rosalind English discusses the Agriculture Bill with Peter Stevenson, senior policy advisor to the campaign organisation Compassion in World Farming.

Events:

• Terrorism, National Security and the Law: 18th June, with Lord Carlile and Gresham College. More information here.
• Lets Talk About Race Equality in HE: 22^nd June, with Brunel University. More here.

If you would like your event to be mentioned on the Blog, please email the Blog’s Commissioning Editor at jonathan.metzer@1cor.com